Citation Nr: 1115653
Decision Date: 04/21/11 Archive Date: 05/04/11
DOCKET NO. 09-24 696 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUE
Entitlement to an effective date prior to April 24, 2008 for the grant of service connection for multiple myeloma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The Veteran served on active duty from January 1965 to August 1968 and from February 1969 to November 1970.
This matter arises before the Board of Veterans' Appeals (Board) on appeal from April 2008 and November 2008 rating decisions by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. The Veteran was discharged from his second period active service in November 1970.
2. An original claim for service connection for multiple myeloma was filed on April 24, 2008, and the first diagnosis of multiple myeloma is contained in a VA pathology report also dated in April 2008.
3. In April 2008, the RO granted service connection for multiple myeloma and assigned a 100 percent disability rating, effective April 24, 2008, the date of receipt of the claim.
4. There is no communication of record prior to April 24, 2008 that can reasonably be construed as a formal or informal claim for entitlement to VA compensation benefits based on multiple myeloma.
CONCLUSION OF LAW
The criteria for an effective date prior to April 24, 2008, for the grant of service connection for multiple myeloma have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).
If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
VA's duty to notify the claimant of the information and any medical or lay evidence that is necessary to substantiate the claim was satisfied by a letter sent to the Veteran in July 2009. Notwithstanding the belated notice regarding effective dates, the Board determines that the Veteran was not prejudiced in this regard as his claim was readjudicated in the Supplemental Statements of the Case in May 2010 and June 2010. Moreover, throughout the course of this appeal, the Veteran, has submitted statements addressing the issue of when entitlement to service connection for multiple myeloma arose and he provided relevant documents in support of the effective date aspect of his claim. Thus, he has demonstrated actual knowledge of what he needed to show to establish entitlement to the benefit sought. Remanding for further notice of the laws and regulations concerning effective dates would delay the claim, would not likely lead to the submission of additional pertinent evidence, and would serve no purpose.
In any event, and in this regard, the Board notes that the Veteran's initial claim was one for service connection for multiple myeloma. The RO granted that issue in the April 2008 rating action. No further VCAA notice is required with regard to the downstream issue of entitlement to an earlier effective date for the grant of service connection for that disability. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).
The RO has also fulfilled its duty to assist the Veteran in developing his claim. As noted, the only issue for consideration is whether the Veteran is entitled to earlier effective date for the grant of service connection for multiple myeloma. The Veteran has identified no records that would be relevant in substantiating that element of his claim.
A current VA examination would provide no useful information as to whether an earlier effective date for the grant of service connection for multiple myeloma is warranted. As such, VA has no further duty to assist the Veteran in developing this claim. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.
VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Law and Analysis
The Veteran contends that an effective dated earlier than April 24, 2008, is warranted for the grant of service connection for multiple myeloma.
Under 38 U.S.C.A. § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. Otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later.
A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (2010). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2010).
The basic facts in this case are not in dispute. The Veteran was discharged from his second period of service in November 1970. Service records show he served in Vietnam and therefore is presumed to have been exposed to a herbicide agent. See 38 U.S.C.A. § 1116(f) (West 2002). The Veteran filed an original claim for service connection for multiple myeloma on April 24, 2008. In support of this claim is a VA pathology report which shows he was diagnostically assessed in early April 2008, and diagnosed with multiple myeloma. This report is the first competent medical evidence of multiple myeloma. In April 2008, the RO granted service connection for multiple myeloma on a presumptive basis for a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). A 100 percent disability rating was assigned, effective April 24, 2008, the date of receipt of the claim.
The Veteran does not argue, and the evidence of record does not reveal, that he filed a formal or informal claim for service connection for multiple myeloma prior to April 24, 2008. Rather, he asserts that he is entitled to an earlier effective date based on preliminary testing performed at the Denver VA Medical Center (VAMC) in 1990, which revealed an increase in plasma cells consistent with myeloma. He states that the VAMC wanted to do further evaluation to confirm the diagnosis, but never contacted him to schedule the tests. He contends that he had multiple myeloma as far back as 1989 despite the fact it was not clinically confirmed.
However, the 1990 clinical findings cannot serve to establish entitlement to an earlier effective date. The Board notes that this medical evidence shows that in early 1990 the Veteran was referred to the hematology clinic following a diagnosis of monoclonal gammopathy. A bone marrow biopsy showed a clear increase in atypical plasma cells, but this was considered nondiagnostic and thus insufficient to call a diagnosis of multiple myeloma. During follow-up examination, the examiner concluded that the Veteran had a mild monoclonal gammopathy with no clear criteria for multiple myeloma.
The first clinically established finding of multiple myeloma appeared in the early April 2008 VA pathology report, which was submitted with the Veteran's claim for service connection. In other words, this pathology report represents the first evidence of record sufficient to support a grant of service connection for multiple myeloma. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (the threshold requirement for service connection to be granted is competent medical evidence of the current existence of a claimed disorder). In the absence of proof of a present disability, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992).
The Board is not resting its current decision upon the simple lack of a confirmed diagnosis of multiple myeloma and has fully considered the Veteran's contentions. Unfortunately there is no provision in the law for awarding an earlier effective date based on his assertion that the multiple myeloma existed before he filed the claim. Assuming for the sake of argument, that the Veteran's multiple myeloma was present in 1990 (which, as discussed herein, the evidence of record does not support), the mere presence of such medical evidence does not establish an intent on the part of the Veteran to seek service connection for a condition. Brannon v. West, 12 Vet. App. 32, 135 (1998). The Court has emphasized the point that the "effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection . . . but on the date that the application upon which service connection was actually awarded was filed with VA." In this case, the first and only claim for VA benefits for multiple myeloma was the one date-stamped as received at the RO on April 24, 2008.
Accordingly, and based on this evidentiary posture, the preponderance of the evidence is against an effective date earlier than April 24, 2008. The Veteran's claim for service connection for multiple myeloma was first received on April 24, 2008. This disorder was first diagnosed earlier that month. The law and regulations are clear that the effective date to be assigned in an initial claim for service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. §§ 5101(a), 5107; 38 C.F.R. §§ 3.151(a), 3.400(b)(2). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by it.
ORDER
An effective date prior to April 24, 2008 for the grant of service connection for multiple myeloma is denied.
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THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs